State v. Kelsey

592 S.W.2d 509, 1979 Mo. App. LEXIS 3094

• Court: Missouri Court of Appeals
• Decided: December 7, 1979
• Docket: 10723
• Status: Published

Opinions

TITUS, Presiding Judge.

A Lawrence County jury found defendant, Dr. Kenneth L. Kelsey, guilty of second degree murder in connection with the February 11,1976, killing of Cynthia Jane Hall at the Aurora home of Vera Ford. The punishment fixed by the jury was imprisonment for 40 years. After denial of defendant’s motion for a new trial, the trial court sentenced defendant in accordance with the verdict and he appealed.

One issue on appeal concerns the refusal of the trial court to suppress, as an exhibit of the state, a .25 caliber Colt automatic pistol allegedly used in the killing. The issue principally concerns testimony of undercover narcotic agents Eapmon and Con-nor who, during the times involved, i. e., March 11 to March 30,1976, were on assignment by the Drug Enforcement Administration of the Federal Government to investigate averred illegal drug sales being made by defendant.

Defendant and his wife resided in a two-story structure located in Shell Knob, Barry County, Missouri. Inter alia, the ground floor was used by defendant as offices, etc., in his practice of medicine. The second floor (consisting, at least, of a kitchenette, living room, two bedrooms, closets and a bath) was used by defendant et uxor as their home and living quarters.

On March 24, 1976, during the fifth visit agents Eapmon and Connor had with Dr. and Mrs. Kelsey in their office-home, Mrs. Kelsey directed the agents to take a roundabout route in returning to Springfield because their “house was under surveillance by the Barry County authorities [who] were trying to pin a murder rap on Dr. Kelsey because an ex-girlfriend was shot and killed in the month of February in Lawrence County [and on] the night the murder took place . . . Dr. Kelsey was gone [from home] a couple of hours and upon returning to their residence, he handed her a 25 caliber gun and said, ‘Hide this because the authorities will be looking for it.’ ”

Five days later, or on the night of March 29, agents Eapmon and Connor were again talking with Dr. and Mrs. Kelsey in their living room. Agent Connor “displayed a 25 caliber automatic of his own and asked Mrs. Kelsey if that was one like she had . [S]he left the room and came back . and said ‘Doc, you’ve been messing with my gun.’ [After defendant told her] ‘It’s downstairs’ [she left and] came back with a 25 caliber gun and she had a glove on the hand” with which she was holding the weapon. Each agent examined the pistol produced by Mrs. Kelsey, by prearrangement surreptitiously memorized its serial number and returned it to Mrs. Kelsey who “wiped the gun off with her smock and went back to the [rear] bedroom” before returning to the living room without the weapon.

The following morning, March 30, the agents returned to Dr. Kelsey’s offices and were told by the defendant that Mrs. Kelsey “was in Springfield.” Agent Connor “asked Dr. Kelsey if he wanted to sell . . . the gun that we had viewed the night before and . . . [defendant] was real upset and he said, ‘Do you want to be killed?’ . . . Agent Connor said that if it meant that much to him to forget it, and Dr. Kelsey said, ‘You don’t want it in your possession. It has been used in a murder.’ ”

After this brief morning encounter with defendant on the 30th, supra, the two agents traveled a short distance to rendezvous with a waiting entourage consisting of “the Federal Prosecuting Attorney,” the prosecuting attorneys of Barry and Lawrence counties and various federal and local law enforcement officers. Including agents Eapmon and Connor, the group numbered ten. A “Federal Search Warrant” had been issued and was in the hands of the federal authorities. It authorized a search of Dr. and Mrs. Kelsey’s property for “valium, li-brium” and marked money; the federal warrant did not authorize a search for or seizure of any weapons or the .25 caliber pistol in question. The record indicates an admittedly illegal state search warrant had been issued for “a .25 caliber automatic Pistol . . . used for committing a felony.” As a result of discussions had at this meeting, it was determined that the federal search warrant should then be executed and that Dr. and Mrs. Kelsey should be arrested instanter. Following this decision, the het-erogenic band of officials hied itself to the Kelsey office-residence.

Upon arrival at the Kelsey property, agents Eapmon and Connor made a second entry, leaving the other officers and officials outside. Ostensibly to separate defendant from his downstairs patients and nurse, Eapmon and Connor used the pretext that agent Connor’s billfold was missing and may have been lost the previous night in the upstairs living room. After defendant and Connor went upstairs to search, agent Eapmon summoned the other officers who went upstairs into the residential area of the edifice. When all the officials arrived upstairs or were in the process of doing so, defendant was arrested and the federal warrant was read to him.

. While the arrest and reading of the federal warrant to the 65-year-old defendant were taking place in the upstairs living room, agent Eapmon, shortly followed by agent Connor and a deputy sheriff, walked down the 27 to 30 foot long hallway leading to the bathroom and bedroom areas of the house. Albeit Dr. Kelsey had previously told the agents that Mrs. Kelsey was in Springfield, Eapmon said he went into this area of the house “to assure myself no one else was in the residence and to look for controlled substances or marked money.” In so walking, the agents and deputy sheriff passed by a bedroom and bathroom which they did not enter or inspect save for a brief glance through open doorways. Upon reaching the second bedroom on this sojourn, agent Eapmon pulled open and searched the drawers of a night stand, a bureau and a chest of drawers. In searching the chest of drawers, Eapmon found a .25 caliber Colt pistol and another handgun. After ascertaining that the .25 caliber pistol bore the same serial number as the one inspected the night before, the gun was given to the deputy sheriff and the agents ceased their search of the bedroom. Immediately thereafter, agents Eapmon and Con-nor went downstairs to show the location of the drug cabinet to other officers and departed the premises in search of Mrs. Kelsey.

At the hearing on defendant’s motion to suppress the .25 caliber pistol as evidence, it was established that the usual modus oper-andi employed by' the involved federal agents, and others, in searching premises via warrants for drugs or marked funds, was to go through “the house room by room.” Depending on the number of search personnel available, “one or two agents . will search [a] room from top to bottom, and then . . . the officers will switch rooms [with other officers] and they will do the same thing the other officers did in that room to be sure nothing is overlooked.” In explaining what a “top to bottom” room search entailed, agent Eap-mon explained: “Well, cabinets in the kitchen and valances around the draperies where you find contraband hidden. We start at the top and come all the way down to the bottom, down to the carpet area.”

Although not questioned by the state, the thought occurs as to whether the defendant here had standing to raise search and seizure violations proscribed by the Fourth Amendment to the U.S. Constitution and art. 1, § 15, Constitution of Missouri, V.A.M.S., because the .25 caliber pistol was ostensibly owned by Mrs. Kelsey. We conclude that defendant had such standing as it may be demonstrated “By showing . a substantial proprietary or pos-sessory interest in the premises searched, or his own presence on the premises when the search occurred.” Vol. 67, No. 2, The Georgetown Law Journal, at p. 415, and cases there cited.

The “silver platter” doctrine was overruled in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), which held that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over proper objection in a federal criminal trial. This was shortly followed by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961), wherein the court ruled that as a matter of due process, evidence obtained by state police officers by search and seizure in violation of the Fourth Amendment of the U.S. Constitution is as inadmissible in a state court as it is in a federal court. The converse to these federal holdings has long been the rule in Missouri, i. e., in State v. Rebasti, 306 Mo. 336, 349-350, 267 S.W. 858, 862[7] (banc 1924), it was ruled that an unlawful search and seizure by a federal officer does not become lawful when brought into question in a state court and that the evidence of a federal official, which would be held incompetent in the federal courts on account of the Fourth and Fifth Amendments, does not become competent when offered in a state court.

In this case we are confronted with an uncommon set of circumstances. We have federal undercover narcotic agents, Eap-mon and Connor, whose obvious and admitted primary assignment, duty and concern involved illegal drug sales by defendant. Apparently the agents had made “buys” with marked money and their assumedly valid federal warrant only authorized a search for and seizure of valium, librium and marked money. The state officers, sans a valid search warrant, were concerned with solving the murder of Cynthia Jane Hall. It is evident that on the March 29 visit of the federal agents with Dr. and Mrs. Kelsey and on the first encounter on March 30 of the agents with Dr. Kelsey alone, the principal concern of the agents was to aid and abet the local officials in their quest for evidence regarding the state crime. Also to be noted is that when Dr. Kelsey was in the process of being arrested in his living room on federal charges in the presence of ten federal and state officers, agent Eapmon detached himself from the array and went directly to the bedroom where he had seen Mrs. Kelsey take the .25 caliber gun the previous evening. Upon agent Eapmon’s arrival at the bedroom, followed shortly by agent Connor and a deputy sheriff, a “top to bottom” search of the room was not undertaken in accordance with usual practices and procedures. Instead a hurried search was made by agent Eapmon of the night stand, bureau and chest. As soon as the sought-after .25 caliber Colt was found, the search ceased and the gun was delivered into the hands of the deputy sheriff.

The omission to name the seized gun in any valid search warrant cast upon the state the burden of showing that the war-rantless seizure was justified by a specifically established and well-delineated exception to the Fourth Amendment’s general requirement of a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); State v. Witherspoon, 460 S.W.2d 281, 284 (Mo.1970).

In Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 237 (1927), the Supreme Court said: “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” This holding has been tempered with the pronouncement that “the mere fact that the items seized were not described in the warrant does not justify their suppression. . . . [A]n item discovered in a search authorized by a warrant but not described therein may be seized if it is evidence ‘of another crime being committed in [the searching officer’s] presence’ [United States v. Carwell, 491 F.2d 1334, 1336 (8th Cir. 1974), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669], or is ‘reasonably related to the crime for which the warrant issued’ [Taylor v. Minnesota, 466 F.2d 1119, 1121 (8th Cir. 1972), cert. denied, 410 U.S. 956, 93 S.Ct. 1425, 35 L.Ed.2d 689 (1973)].” United States v. Golay, 502 F.2d 182,184 (8th Cir. 1974). It is also noted in Golay, at 184[2], that when a warrant search is being made, the searching officer may seize “plain view” items discovered in places where the officer had a right to be provided they fall within the two categories .noted in the opinion, supra. Also see, Gurleski v. United States, 405 F.2d 253, 258[7] (5th Cir. 1968). In addition to the foregoing limitations on seizing things not named in warrants, it is required that such items must be found in a “good faith” discovery while executing a search for warrant-named items. People v. Blair, 89 Cal.App.3d 563, 152 Cal.Rptr. 646, 651-652 (1979). In United States v. Tranquillo, 330 F.Supp. 871, 876 (M.D.Fla.1971), the court held that the plain view doctrine, which allows officers to seize contraband or other evidence which comes into plain view during a valid search but which is not named in the warrant, cannot be used to validate a seizure when the search has “gone so far astray of a search for the items mentioned in the warrant that it [has] become a general exploratory search for any evidence of wrongdoing that might be found.”

It is obvious from the evidence that the federal and state officers strongly suspected defendant to be involved in Mrs. Hall’s murder. Albeit defendant and spouse knew of this awareness, there was no indication that defendant proposed to flee. He had ample opportunities to destroy or conceal any evidence he thought incriminating, including the .25 caliber Colt pistol in question. No suggestion was evident that the gun, at the time of the search and its seizure, was evidence of another crime being committed in the presence of the searching officers or that it was reasonably related to the crime for which the federal warrant was issued. The evidence nowhere indicates that it was unlawful for defendant or his wife to possess the firearm so that it could be seized on any theory, or on the theory held valid in United States v. Carwell, supra, 491 F.2d at 1336[1].

On March 24 (the seventh day before seizure) the agents were told the gun had been hidden “because the authorities will be looking for it,” and on March 29 (the evening before seizure) the agents personally inspected the weapon, memorized its serial number and knew it was housed in the back bedroom. The opportunity for obtaining a valid search warrant was hardly fleeting. When the agents and other officers (ten in all) arrived at defendant’s house to arrest him (without resistance) and immediately confirmed prior information that neither Mrs. Kelsey nor anyone else was present in the living quarters, there admittedly was no way in which defendant could conceivably gain access to the pistol. “In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a warrant.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S.Ct. 2022, 2036, 29 L.Ed.2d 564, 580 (1971), reh. denied, 404 U.S. 874. Nevertheless, when it was discovered that the gun was on the premises, the local officials, armed with information given or available to them by the federal agents and the deputy, would have been in a position to have secured a valid state search warrant to lawfully seize the pistol. People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232, 237[7] (1968). Also, United States ex rel. Nickens v. LaVallee, 391 F.2d 123 (2d Cir. 1968).

The procedure followed in making an immediate search of the bedroom furniture, rather than the usual “top to bottom” search of the room, and the prompt cessation of the search upon finding the weapon, belies a “good faith” search for narcotics and marked money. Additionally to be considered is the fact that as soon as the pistol was found, the agents immediately went downstairs to show others the location of the cabinet in which they had seen narcotics kept and thereafter promptly departed in search of Mrs. Kelsey. We conclude the trial court erred in failing to suppress the .25 caliber Colt automatic pistol as evidence in the case.

Another point relied on relates to the fact that during his trial and appearances in Missouri courts on the state charge, defendant was incarcerated in the Medical Center for Federal Prisoners in Springfield, Missouri. Defendant says the trial court erred in refusing to discharge him because his shuttling from and to federal incarceration during various appearances in Missouri Courts violated the Agreement on Detainers. V.A.M.S. § 222.160 et seq. It has been held that when, as here, a federal prisoner’s appearances in a state court are obtained via writs of habeas corpus ad prosequendum rather than detainers, the Agreement on Detainers is not applicable. United States v. Mauro, 436 U.S. 340, 361, 98 S.Ct. 1834, 1847, 56 L.Ed.2d 329, 347 (1978); State v. Haslip, 583 S.W.2d 225, 227-228[6] (Mo.App.1979); State ex rel. Stanley v. Davis, 569 S.W.2d 202, 210 (Mo.App.1978).

A third point relied on reads: “The trial court erred and committed error in admitting into evidence and failing to strike the medical testimony of [the state’s] pathologist . . . . Said testimony was not based upon relevant facts in evidence and was highly prejudicial to [defendant]. The Court’s failure to strike was error resulting in manifest injustice.” Rule 84.-04(d), V.A.M.R., mandates that “[t]he points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” (Emphasis supplied). As written, this point provides no clue as to the nature of the medical testimony. Neither does it furnish any understanding of “wherein and why” such testimony, whatever it was, was not based on relevant facts in evidence, was highly prejudicial or resulted in manifest injustice. Points relied on should definitely formulate and isolate the precise issues to be reviewed. State v. Hulsey, 557 S.W.2d 715, 717[1] (Mo.App.1977). “No duty reposes upon an appellate court to resort to the argument portion of a brief [or to the transcript on appeal] to ascertain ‘wherein and why’ the action or ruling of the trial court is said to be erroneous . . ., and a defendant’s point which cannot be comprehended without reference to the argument [or transcript] results in nothing being preserved for review on appeal.” State v. McClain, 541 S.W.2d 351, 354[7] (Mo.App.1976).

The two remaining points relied on in defendant’s brief relate to averred post-trial errors by the court in failing to grant a new trial because one of the jurors allegedly had been convicted of a felony and another juror purportedly had been coerced by the others into voting for a guilty verdict. As it has been hereinbefore determined that a new trial is required and as the averred jury problems are not likely to reoccur, the two remaining points need not be decided at this time.

Judgment reversed and cause remanded for a new trial.

All concur, except PREWITT, J., dissents and files dissenting opinion.